Rossi v. Darden -- Darden Motion for Judgment on the Pleadings as to Count I of the Complaint

This is Rossi v. Darden document 43.0.

Darden is going for the jugular. This is narrow and focused. (My first impression is that it s a bit too narrow, but just maybe Jones Day knows exactly what they are doing.)

This is a repeat of an argument that was in their Motion to Dismiss, as they acknowledge. The Second Amendment (DE:1.4 ) allowed the postponement of the Guaranteed Performance Test until a date to be determined in writing by agreement of the parties, and to be of, not the original Plant, but a "six cylinder Hot Cat unit," referred to repeatedly, the Test was to be of the "Six Cylinder Unit," instead of the original 1 MW plant delivered to IH in August, 2013.

However, the primary argument advanced in the Motion to Dismiss was the lack of signatures on the Second Amendment. If the Second Amendment was invalid, then there had been no test within the required period and therefore no payment due. That would not have been the end, because Rossi could have equitable arguments requiring consent to a later test, under proper conditions. At the time, there was much derision at the IH argument, since they had, after all, signed the Second Amendment. However, a reason for that now appears. They wanted Rossi to clearly argue that the Second Amendment was valid. Until that point, Rossi could have denied the Second Amendment, but still argued estoppel on the matter of time. Now, the pleadings show that the Second Amendment was accepted fully by Rossi and Leonardo, even though Leonardo never signed it, as far as we know.

So now they are nailed to the terms of the Second Amendment. And this was very clearly about a Six Cylinder Unit. In order to make their dismissal argument, they needed fact on record showing that the Six Cylinder unit was never delivered to Florida.

There is possible technical error here. Darden argues that the Florida installation was the original Plant as delivered in 2013. The actual installation was of two 1 MW plants. This came out recently in discussions on E-catworld, there are photographs. The main plant used consisted of four "slabs," or "Tigers," 250 kW each, and this is obvious from the JM Products "invoices" -- actually invoice requests. However, the original plant was also installed and ready if needed. So there were two plants in Florida, but it was not the Six Cylinder Unit, which was left in Raleigh.

Unless estoppel can be shown -- and it has not even been alleged at this point -- this is a fatal flaw, and it is not simply some technical argument. The $89 million payment was conditioned on a Guaranteed Performance Test of, originally, that specific Power Plant delivered, which might have been modified or repaired during Test, but .... substituting something completely different without explicit consent would void the test. This was not a test where "Something Rossi" could satisfy it. Rossi had represented that he had a 1 MW plant ready to go. IH called his bluff. It was not ready, that became fairly obvious in the Validation Test. It is reasonably clear that the delay was from Rossi, not IH. He knew that an immediate test would fail, so he put it off. However, this is not established for the Court.

In rejecting the Motion to Dismiss Count I, the judge wrote:

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Regarding Defendants’ “six-cylinder” argument, there is insufficient information in the record to determine whether the six-cylinder unit is simply another name for the E-Cat Unit. Accordingly, the Court will allow discovery to proceed on this matter before ruling. Thus, the Court declines to dismiss Count I.

The MTD specifically raised the issue, obviously. In their response to the motion, Rossi had stated

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Lastly, Defendants argue that Plaintiffs' claim for Breach of Contract should be dismissed because "Plaintiffs have not pled, and cannot pled [sic], that they performed their "test" ...using such a Six Cylinder Unit." Such argument is clearly improper as it goes beyond the four corners of the Complaint and therefore cannot be considered by the Court when considering the Motion to Dismiss. Caravellov. Am. Airlines, únc.,315 F. Supp.2d1346,1348 (S.D. F\a.2004). Moreover, such argument would likewise be subject to limitation under the doctrines of equitable estoppel and waiver, matters of fact, not an insufficiency of pleading.

The judge did not accept this argument directly. Rather, the Judge hinted that if it were known that the Unit tested was not the "Six Cylinder Unit" described in the Second Amendment, she would have dismissed. Yes, estoppel might be shown, but conditions for estoppel have not actually been alleged. Only if the defendants explicitly accepted the installation in Florida as a GPT -- rather than as merely a sale of power as all the correspondence indicates -- would estoppel apply. In the MTD, Annesser declined to reply to the claim, terming it moot. This, by itself, is not fatal, because it is a factual argument. However, what does the pleading record now show?

In the Amended Answer, Additional Defenses, Counterclaims and Third Party Claims (AACT, document 30.0 and exhibits),

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The AACT

Defendants filed the AACT on August 11, 2016. [D.E. 30]. The AACT makes clear that “[t]he Six Cylinder Unit in the Proposed Second Amendment is separate and distinct from the E-Cat Unit or Plant as referenced in the License Agreement, the First Amendment, and the Complaint.” AACT ¶ 62 (page 11). To eliminate any doubt, Defendants explained that the “Six Cylinder Unit remains in North Carolina” (and hence could not have been tested by Plaintiffs in Florida) and attached photographs to the AACT that accurately depict the Six Cylinder Unit. Id. ¶ 62, Ex. 3. In addressing paragraph 71 of the Complaint, Defendants further explained:
“Defendants admit that the E-Cat Unit was operated in Florida during a period in 2015 and 2016.
As reflected in Rossi’s internet blog postings at the time, that Unit was the Plant – i.e., the 1 MW
E-Cat – which is described in Exhibit C to the License Agreement. AACT ¶ 71 (page 13).

That is basically it. Now, Rossi had the right to respond to the AACT. Did he?

He responded to the "Additional Defenses," the Affirmative Defenses, claiming they were vague, and to the Counterclaims etc., with a motion to Dismiss them, but he did not respond to the Answer, which contains the above claims. Response to the Answer itself was due 9/2. By not responding to the Answer, Rossi set up conditions for this Motion, which was filed at 6:23 PM on 9/2, when they were reasonably confident that there was going to be no Answer in time.

He could still Answer and then refer to the Answer in a response to the new motion for Judgment. But what is he going to say?

We know very well this: the Second Amendment was written at a point where Rossi had decided he did not want to test the original E-Cat Unit, but an improved version, then being designed or built, called the "Six Cylinder Unit." So the Second Amendment reflected that. By the time of getting ready for the Doral installation, the Six Cylinder Unit may have been abandoned, and now the Hot Stuff was the Tigers, or "slabs." So what was shipped to Doral was the original E-Cat unit, plus the unit actually used was the four Tigers.

Rossi never asked IH to consent to Doral as a Guaranteed Performance Test. Rather, he set it up to appear as one. This is very clear: the Doral test was not of the "Six Cylinder Unit." Nor has any evidence been alleged that would be adequate to show estoppel.

In addition, the Judge will very likely decide this upon a hearing. If the plaintiff has not responded, pointed questions will be asked. Essentially, "Is it or isn't it?"

And we know it isn't. So Annesser or the new attorneys may claim that it doesn't matter, it was "accepted." And then IH will point to what they included in their Motion:

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As the Proposed
Second Amendment makes crystal clear, that payment was:

Id. (emphasis added).

There is an error here. They intended to add emphasis. Did they intend to emphasize the "six cylinder Hot Cat unit" or "agreed to in writing." Both were absent and have not been alleged by Rossi. If either was missing, the GPT was invalid, unless the Agreement was further amended.

My imagination of the hearing: J = the judge, R = Rossi counse, IH = Industrial Heat counsel.

J: Was the unit tested a "Six Cylinder E-Cat Unit"?

R: It doesn't matter because the tested unit was accepted for the test.

J: I take that as a "No." How are we to know that the tested unit was accepted?

R: They did not object to it.

J: On what occasion? When did their lack of objection signify acceptance of this as a Guaranteed Performance Test?

R: My client worked for a year, every day, and they let him.

J. My condolences to your client. Next time, perhaps he should make sure there is a written agreement, as required, before he works for a year to earn a payment of $89 million. Hearing adjourned.

IH: Thank you, your honor. Turning to Annesser or the other counsel: I'm so sorry for your client.

Some tactical and social considerations:

One of the reasons that it is strongly advised to have independent counsel when prosecuting or defending a lawsuit is that if one is personally involved, emotions can run high, and reactivity can rule. Rossi is clearly, as shown on his blog, highly reactive, almost hair-trigger. A good attorney will hear that, but not become personally involved, nor will the attorney allow the pleadings to reflect reactivity as distinct from sober jugment. Annesser's pleadings are reactive, it's obvious. They are full of emotion-laden words and accusations.

Now, IH raised certain issues that many of us have thought rather weak or inconsequential. For example, the tax issue. Yet Annesser essentially exploded over that, writing 2.5 pages to handle and attempt to have struck, something easily addressed with a few words. The objection to the lack of signatures on the Second Agreement seemed purely technical and weak. But these had an effect.

Bottom line, emotional response often distracts us from the real and present issues. So we have two motions filed by Annesser. The first was a motion to strike the Affirmative Defenses. That creates substantial complexity, because to look at this requires looking over the entire complaint to make sure that there is some possible factual basis for each AD. I have not examined that specific objections to each AD, but only the Introduction. Basically, if the Judge considers there is a problem, the Judge will ask for amendments. I.e., the result of this would be to create a stronger, clearer AD section. The value of this to the plaintiff is? I see this Motion as an attempt to attack the defense, to support Rossi's emotional reaction that "they are lying snakes."

Then there is the Motion to dismiss the Counter complaints, most of them (leaving only a couple of claims that are not of high damage value). All part of demonstrating to Rossi that Annesser is firmly pursuing his case.

But ... he missed the deadline to Answer. Maybe he though that filing Motions would affect that, but there were really three aspects to the Answer. The Answer proper, the AD section, and the Counter-complain. There was a deadline with respect to response to the Answer. I have seen no precedent allowing delay because of motions affecting what is really two separate sections of the Answer.

On Planet Rossi they are waxing effusive over Annesser's skill. Some people are easily snowed, especially when they have an emotional response to fact.

The consequence of not replying to the Answer is an insufficiency of the pleadings on the issue of "Six Cylinder Unit," which is not a trivial issue, easily set aside, like the signature objection was (given that IH had signed it and postponement was obviously in the interest of all parties, there was no rush). The outrage over that "silly objection" may have distracted Rossi and his attorney from the core issue, consent for the test. My guess is that Rossi doesn't have anything to show consent.

Was it the intention of Annesser to delay their reply by filing those motions? If so, not skillful, I'd think. It's remediable by filing ASAP. But what will they say?

They do get to reply to the Motion for Judgment, regardless.

https://groups.yahoo.com/neo/g…tex/files/Rossi_v_Darden/ - Document 0040.0.

I will probably do a detailed analysis of this, but for the moment I'm noticing how Planet Rossi appears to have not noticed that

1. Rossi did not reply to the Darden Amended Answer within the 21 day period allowed. Instead, Rossi filed motions to Dismiss the Countercomplaint and to strike the Affirmative Defenses. I would understand that his time to reply to those sections of the Amended Answer would be tolled by the Motions to Dismiss and to Strike. However, it looks like Jones Day interprets the requirements differently, because they filed a Motion for Judgment on the day that reply was due, and that Motion is rooted in no opposition to IH claims in the Amended Answer -- the first part!

2. There was that Motion for Judgment, asking to dismiss Count I, the basic count for breach of contract. It was very brief.

3. Friday, late, Rossi filed a Response in Opposition to the Motion for Judgment on the Pleadings.

My guess is that most inhabitants of Planet Rossi are confused by these legal moves, and would rather talk about other Important Stuff, even though Rossi v. Darden could now evaporate within a few weeks. This motion has a higher chance of success than the first Motion to Dismiss, especially if the Judge reads a bit more carefully this time.

(Motions to Dismiss are still difficult. Rossi is claiming estoppel again, though on something much more difficult, and he is claiming estoppel regarding original claims that have no documentary basis and no clear evidence other than the names he calls things, there is no evidence that those names were actually used in the communications he cites -- and from what we have seen, they were not.)

If Darden really did agree to the Doral plant as a Guaranteed Peformance Test and Penon as ERV, as distinct from a sale of power and demonstration with Penon as an engineer making measurements, when and where, exactly? The strongest claim would be in the claimed setting of a test procedure with Penon. No document was shown, and no specific language used showing acceptance as the GPT was quoted. What was contractually required was a document signed by all parties (yes, that again, but with the Second Amendment there was at least a document signed by Darden and Rossi, there appears to have been nothing signed at all setting this as a "GPT" or Penon as "ERV.")

The actual conduct of the "test" was entirely different from what would have been allowed with a "GPT." The excusion of the IH engineer was a nuisance to them as a power installation. It would have been so egregious with a GPT that they might have gone immediately to Court of Rossi didn't relent. The whole concept of a "secret customer area" was not visible in the Terms Sheet where Rossi and IH and Johnson agreed on the lease of the plant, would have been inimical to a GPT.

Now, that gets complicated and if it is not simple to decide, then it would have to go to trial. But ... the evidence at this point is clear that this was not a GPT, i.e, no evidence has been *specifically alleged* that would establish that. Hence the IH motion is in order. Annesser also asserts procedural failure, which is questionable. At least the IH Motion has the blush of propriety, due to failure to respond to the Answer. There is difference of opinion among legal experts as to the effect of a "partial motion to dismiss." This is worse, though, than the cases I looked at. And the majority advice seemed to be to either move to dismiss the whole case, don't leave anything out, or request leave to postpone an answer, but not just to ignore the deadline from an unopposed pleading.

At the same time, Rossi claims that the Motion to Dismiss was motivated by a desire to raise his legal costs. Does Annesser think this will impress the Judge?

I don't see the hand of the new attorneys in this. I'd expect more from them. Maybe I'm naive.

The way I see it, Tom Darden had to know that Andrea Rossi considered the one year test to be the official performance test. If Tom Darden did not consider the one year test to be the official performance test, I cannot imagine he wouldn't have called Andrea Rossi (or have one of his employees do so) and say: "For the record, we are not considering the test you are performing to be the one year test. The reasons are x, y, z. So don't expect to get any money from us."

However, from what Dewey told us, IH actually helped build the one megawatt plant (although Rossi made many changes that they did not agree upon). It sure seems like to me that if IH didn't officially tell Rossi in writing that the test of the one megawatt plant was acceptible, they never flat out told him otherwise. To let him continue the test without telling him so would at least have been deceptive. That is why it seems to me that neither side is totally 100% innocent here. I want to see IH present the recording of the phone call they made to Rossi reminding him that the one megawatt plant wasn't the six cylinder unit, that he had began the testing of the plant far too late, that he made changes that were unacceptable, so that they were not going to pay him even if the plant did produce a COP over 6.

Quote from MrSelfSustain

The way I see it, Tom Darden had to know that Andrea Rossi considered the one year test to be the official performance test.

The question would be when. When did Rossi first claim that this was the GPT?

It was not in the email proposing the move to Florida. It was not in the Terms Sheet. The Agreement required the written agreement of all parties prior to the start of the test. That was not a casual or unimportant requirement, it would be precisely to avoid disagreements like this. Estoppel can be established, but the evidence would have to be strong, not weak, like "he should have objected" when we don't know when he had anything to object to.

It was all set up by Rossi to appear as a sale of power and an opportunity for demonstration visits to investors and customers. I'm sure that Penon was presented as the person Rossi wanted to measure the power. At what point should Darden have said No?

Problems seem to have appeared in July 2015, when Rossi refused to allow the IH Engineer Murray to visit. But that would have been totally inappropriate with a GPT, first of all. Rossi did say "test," then, but this could have meant testing the use of the power in the chemical process of the customer. If that is all that was going on, why should IH object?

Rossi has totally avoided confronting the issue, presenting conclusory statements instead of evidence.

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If Tom Darden did not consider the one year test to be the official performance test, I cannot imagine he wouldn't have called Andrea Rossi (or have one of his employees do so) and say: "For the record, we are not considering the test you are performing to be the one year test. The reasons are x, y, z. So don't expect to get any money from us."

The first hint that we have of a problem is with the Murray document (Exhibit 5). That was dated March 25, as Penon was apparently about to issue his Report. Murray says that his questions are not about any GPT or "ERV" role, but just about the results.

However, Rossi and IH were communicating through their attorneys (Jones Day and Annesser), in February, so my conclusion is that it had broken down before then.

Estoppel has limits. Where there is a specific contractual requirement for written consent, going ahead without that would be extraordinarily foolish. What does it take to get a signature? If there actually is consent, that is.

My sense is that Rossi carefully avoided any mention of the "GPT" until it was already under way. And possibly not until the end.

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However, from what Dewey told us, IH actually helped build the one megawatt plant (although Rossi made many changes that they did not agree upon). It sure seems like to me that if IH didn't officially tell Rossi in writing that the test of the one megawatt plant was acceptible, they never flat out told him otherwise.

IH was hoping, until the end, that Rossi would show them how to build reactors that worked, that's what I see. We have no idea what was said to Rossi or not said to Rossi, but if you read the documents, there is no evidence that Rossi called this the GPT until the end. So what was there to object to?

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To let him continue the test without telling him so would at least have been deceptive.

It was not a test, it was a sale of power and a demonstration. Now, Rossi did, in July, call it a test. But it would not necessarily be clear what he was talking about.

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That is why it seems to me that neither side is totally 100% innocent here.

Rossi was deceptive, we know that, it's very clear from the documents. We have seen nothing in evidence that shows that Darden was deceptive. You can imagine some sort of sin of omission here, but it is entirely unclear when that would have occurred.

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I want to see IH present the recording of the phone call they made to Rossi reminding him that the one megawatt plant wasn't the six cylinder unit, that he had began the testing of the plant far too late, that he made changes that were unacceptable, so that they were not going to pay him even if the plant did produce a COP over 6.

It is generally illegal to record phone calls in the U.S.; in some states, the consent of both parties is required. That notice would be in writing, not by voice on a phone, if it were given. We do not know what correspondence exists on this. Rossi did not reply to the IH Answer, and this is where he might have asserted additional evidence.

My general conclusion, easily rebuttable upon evidence, is that Rossi set up the Doral plant power sale to create an opportunity to run a "GPT" without ever actually getting permission for it. The consequence of doing that is that he spent a year and won't be paid for it. Why did he do this?

He claimed that IH failed to start the test in North Carolina, and so he suggested a move to Florida for the test. But that is not how he presented it to IH, at all. This is quite clear.

Why? It's fairly obvious. He needed to be in full control to show a successful GPT. He needed to have a way to pretend to generate a megawatt. In the IH facility, as IH had proposed, they would have been able to see the output power effect. It is hard not to see a megawatt of power, if it isn't hidden somehow, as in the "secret customer area." To Rossi, this was another "magnificence." He arranged for JMP to pay IH about $30,000 per month for the power. What a brilliant idea!

They will never suspect! They are greedy capitalists and always toss money at greedy capitalists, they will grab for it and meanwhile you can do what you like.

Look at his mails to IH! I look at them and imagine washing my face and hands after seeing them, in context, to dispel the disgust. I have lived in North Carolina. It's a genteel culture. They could see the character they were dealing with, quite clearly. But they needed to find out if he had a real technology. If he had taught them how to make devices that worked, they would have raised the money for him, it's totally clear. It would have been easy for them, and Rossi would already be fabulously wealthy, able to do whatever he wanted. But he had another plan.

We don't actually know what it was.

Rossi had been calling it a test on the JONP for a very long time. From what I understand, IH had been closely monitoring his blog. They knew that Rossi considered what was taking place at the Doral site was a "test" of his technology. Regardless how it was exactly phrased, his comments on the JONP should have tipped them off enough to remind him that even if the plant worked perfectly, they were not going to pay him for all the reasons they now list.

I too think they were waiting to see if Rossi could make the plant work. Dewey described a working one megawatt plant as being a shortcut towards industrialization. But IH can't have it both ways. They either failed to inform him that the testing he was performing would not result in payment out of ignorance of the comments on his blog, OR they failed to inform him because they had some amount of hope that the plant may have worked up to their standards and in that could would have possibly paid him. I'm not saying they were legally bound to pay him or not. This is not a legal argument I'm making. I'm just saying that if I had been IH, after knowing what he was posting on his blog, I would have had to make a decision at some point as to whether or not I would pay him if the testing was successful. And if that decision was negative, I would have reminded him long before the end of the test. To not inform him knowing -- or at least having a suspicion -- that he would expect payment at the end would have been discourteous.

Quote from "Abdulla FUDmaster"

He needed to have a way to pretend to generate a megawatt. In the IH facility, as IH had proposed, they would have been able to see the output power effect. It is hard not to see a megawatt of power, if it isn't hidden somehow, as in the "secret customer area." To Rossi, this was another "magnificence." He arranged for JMP to pay IH about $30,000 per month for the power. What a brilliant idea!

Yeah!!! So you too are thereby also accusing Penon, Fabiani etc for the conspiracies laid out by the Darden lawyer clones. You are in deep shit Abdulla! This whole story is so obvious, Darden wants the cookie without paying for it. He's now trying to steal it with the help of the most expensive legal manouvers ther is....

References to religion removed. Not appropriate for this forum. Don't do it again! Alan

Thanks, MrSelfSustain.

Quote from MrSelfSustain

Rossi had been calling it a test on the JONP for a very long time. From what I understand, IH had been closely monitoring his blog. They knew that Rossi considered what was taking place at the Doral site was a "test" of his technology.

We know that it was called a "test" at least as far back as July, 2015. See Exhibit 19.

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Hi, JT! OK for the address to send from now on the patent papers. About the meeting of Tuesday, you obviously can come when you want, while Joe Murray cannot enter in the factory of JM because, as I have explained to Tom during the visit with Brian Mc Laughlin, I do not allow anybody, except for the personnel already reciprocally authorized, to approach the plant before the tests on course will have been completed. Warm Regards, Andrea Rossi

It appears that Rossi may have also disallowed the visit by Brian McLaughlin -- or maybe that was the last visit allowed.
The mail proposing the sale of power to the "customer" had (Exhibit 16) had:

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2- allow to your Customer-Investors-Visitors to hear from a real Customer that he is making money with our plant

The Terms Sheet, Exhibit 17, had:

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13. IH will be allowed to visit the 1 MW Plant at any time, with customers and with IH personnel.

So, yes, Rossi came to view something about Doral as a test, though that was not stated in the proposal nor in the Terms Sheet. Really, it was a demonstration.

As part of this, then, and probably after the Plant was moved (when was that?)

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Regardless how it was exactly phrased, his comments on the JONP should have tipped them off enough to remind him that even if the plant worked perfectly, they were not going to pay him for all the reasons they now list.

I see no study of those comments nor of their timing. That could be useful. Care to do it?

However, a "test" did not become the Guaranteed performance Test without a writing signed by all parties. We have seen how sloppy Rossi was about written agreements. He got rid of the agreement with Hydro Fusion by creating an impression that he had nothing (his story in the mail ) or by failing a test and making himself look like an idiot (Mats Lewan's story) -- which then doesn't make him look like someone sneakily violating an agreement, but like an idiot. Take your pick. I prefer the idiot interpretation in that case, and then he lied to IH.

It appears that Rossi had no copy of the Second Amendment to the Agreement signed by all parties, nor a collection of such documents, nor did anyone bother to fill in the date. I find this extremely odd with an Agreement setting up a $100 million obligation.

I find it odd that Annesser placed that unsigned Agreement as an Exhibit without obtaining the signatures -- it would have just been Rossi and Cassarino signing, trivial to get -- if Cassarino agreed! (signatures were not dated!) However, the delay was something that could probably have been established as legally necessary, if needed, i.e, the substance of the Agreement would be satisfied if Guaranteed Performance were later found with agreement on the test. Estoppel on that was easy. It only was a subject of the Motion to Dismiss because Rossi had not alleged estoppel! The Judge decided to infer it.

Rossi is now arguing for estoppel on the "Six Cylinder Unit" issue, but IH appears to me to have an ace in the hole: the lack of written agreement. I think there may be a hearing on the Motion, we will see. They do quote the Second Amendment, so the requirement for a written agreement is in there, they merely argue the weaker point explicitly. Rossi ignores that. What I am seeing may be a habit of Jones Day of making the weaker arguments first. When the opposition works themselves into a froth over them, they then calmly up the stakes. Annesser displays signs of being irritated and angry. The tactic is working. He loses the respect of the Judge. With a skilled judge, it may be a small factor, but every little bit helps. So far, everything Jones Day has done has been with a plausible defense (and now counter-offense).

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Regardless how it was exactly phrased, his comments on the JONP should have tipped them off enough to remind him that even if the plant worked perfectly, they were not going to pay him for all the reasons they now list.

What is being made here is a moral argument. Rossi is a baby, and they were taking candy from a baby. This theme runs through the case. Rossi believes they lied to him about Cherokee! Therefore Cherokee should pay! In spite of the "whole agreement" clause of the Agreement, in spite of the Statute of Frauds and what any lawyer would have told him. No, they should have taken him aside and said, over and over, until he got it, that Cherokee was not a party to the Agreement. They should have hired a lawyer to advise him. They should have treated him like a child.

I assume they did tell him, and the question is when. The blog comments are fluff, meaningless, they are not notice and not responding to them is meaningless. They did know that Rossi was violating the Agreement with those comments, generally (that is alleged). On that point, it's possible to establish estoppel, unless they formally complained. We don't know.

This is the conversation I imagine:
Rossi: I can't let your engineer visit because it will interfere with the Guaranteed Performance Test under way.
Darden: That test is not underway, we never agreed to it.
Rossi: you agreed to the protocol with the ERV.
Darden: We agreed to measurement and we were willing to share the cost of that, but that did not make this a GPT nor him the ERV.
Rossi: you will have to pay!
Darden: No. We are responsible to our investors and without fully independent testing, and especially without the ability to make devices that work, we cannot raise $89 million.
Rossi: You never intended to pay me! I'll see you in court!
Darden: I would not advise that. Ask your attorney.

So what did the attorney tell him? If I understand Rossi's character, he would seek and find an attorney who would tell him what he wants to hear. Getting second opinions, great idea! Ignoring first opinions, bad idea!

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I too think they were waiting to see if Rossi could make the plant work. Dewey described a working one megawatt plant as being a shortcut towards industrialization.

Well, it was a path. An expensive and probably unnecessary path. A working small-scale industrial plant -- one unit of a megawatt plant! -- would have been easier to test and earlier to market. The 1 MW plant is good for a path that maintains secrecy, because the value of the power will pay for security. But IH wanted full-scale commercialization, because their goal was -- and remains -- environmentally safe power.

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But IH can't have it both ways. They either failed to inform him that the testing he was performing would not result in payment out of ignorance of the comments on his blog, OR they failed to inform him because they had some amount of hope that the plant may have worked up to their standards and in that could would have possibly paid him. I'm not saying they were legally bound to pay him or not. This is not a legal argument I'm making. I'm just saying that if I had been IH, after knowing what he was posting on his blog, I would have had to make a decision at some point as to whether or not I would pay him if the testing was successful. And if that decision was negative, I would have reminded him long before the end of the test. To not inform him knowing -- or at least having a suspicion -- that he would expect payment at the end would have been discourteous.

The two ways suggested assume that they did not inform him timely. If they delayed informing him, I would assume it was precisely out of hope that he would keep his Agreement. If you look at how Rossi argues, and if you think he believes his own arguments, he would interpret whatever they said to him, confronting his delusions, as an attack or proof they were snakes.

Basically, you are not IH. I have seen no sign that Rossi was treated with discourtesy. You imagine that they did not warn him. You do not know that. Further, it is fairly clear that if Rossi did have a technology, but was still hiding it from paranoia, if they warned him, that would be the end of the possibility that he would perform on the Agreement. It was in their interest -- and in the interest of the world community -- that Rossi be given every opportunity to fulfill. Considerations like that can trump ordinary courtesy.

There are stories that IH offered Rossi money to drop the "test" (and he refused). We do not know any details nor, if, in fact, this actually occurred.

Case documents are in the newvortex filespace, available to newvortex subscribers, requiring a yahoo account and then a subscription is quick.
https://groups.yahoo.com/neo/g…tex/files/Rossi_v_Darden/

The Motion for Judgment on the Pleadings is Document 0043.0 and the Motion in Opposition is 0044.0.

Document 44 is actually an image, not text. This, of course, makes it difficult to quote without retyping. It makes it difficult to search. I find that odd....

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Factual Background

This is a history of the case, told in a manner to support Rossi's conclusory claims about "General Performance Test." The story is told to make it appear that Industrial Heat fully participated and consented to the General Performance Test, without ever actually formally agreeing to it, as required by the Second Amendment. The clause of the Second Amendment requiring an agreement signed by "all parties" to the GPT is not mentioned (it was mentioned in the Complaint.)

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Procedural History

The comment of the Court, in the Order rejecting the Motion to Dismiss, as to Count 1 and the argument given in the present Motion for Judgment, is quoted. At the end of this section is:

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As of the time of filing this response, Third Party Defendants' Responses to Defendants' Third-Party Complaint has yet to even become due."

That usage of the word "even" betrays an emotion-laden response, outraged that this filing would be made this early. It is clear and not controversial: those responses are not past due. The issue is whether or not this is relevant.

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Memorandum of Law
I Standard of Review

Cites Rule 12

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(c) Motion for Judgment on the Pleadings. After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

Rossi covers the principle that "all facts alleged in the complaint must be accepted as true and construed in the light most favorable to the nonmoving party. They do not note the limitation: allegations in the complaint that are conclusory are not "facts."

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II. Defendants' Motion Is Premature And Procedurally Barred At This Time.

With much unnecessary fluff, Rossi asserts that pleadings have not been closed. He states this as if it were a fact, but that fact turns on the definition of "the pleadings." How is that construed in this situation?
Here it is especially irritating that the document is not text. The cases cited cannot just be copied and pasted into Google search.
Doe v. United States, 419 F.3d 1058, 1061 (9th Cir.2005), adopted by
Perez v. Wells Fargo N.A., 744 F.3d 1329, 1336 (11th Cir. 2014); see also
5 Wright & Miller, section 1184 at 24 n. 1 (compiling case law that supports this proposition;
Arnold v. New Jersey, CIV.03-3997 WHW, 2007 WL 1381757 at *2 (D.N.J. May 9, 2007

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"pleadings are "closed " after the complaint and answer are filed, along with any reply to additional claims asserted in the answer"

Press Rentals Inc. v. Genesis Fluid Sols. Ltd., 5:11-CV-02579 EJD, 2012 WL 3791449, at *7-8 (N.D. Cal. Aug. 31, 2012)

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"because the third-party defendants have not filed an answer to the third-party complaint brought by [defendants], the pleadings are not yet closed"

They also cite Perez at 1337.

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Accordingly, Defendants Motion must be summarily denied as premature by this Court

Hmmm... my immediate thought is, never tell a woman what she must do, nor a Judge, nor a woman judge. In fact, it's a bad idea to tell anyone what they "must" do, unless you are prepared to coerce it.

At this point, Jones Day will read this and determine if the argument is sound. It might be, I have not researched this yet. However, it is also possible that the procedural question depends on details of the case. If the facts of a case are clear from the pleadings filed, if the ordinary pleadings are closed where the Plaintiff could correct deficiencies, but failed to do so, then a ruling might go differently. If the Judge had known that Six Cylinder Unit is not just another name -- and now she will knows that, it being uncontradicted -- the whole case might have been gone July 19.

It is not stated, but it appears that Annesser believes that the time to Reply to the Answer is tolled by the objections to the Affirmative Defenses and the Counterclaims. Again, is that the case? These are "partial objections," and I found difference of opinion on the matter in that context. Advice I found on the issue was 'Don't count on it!"

I expect that Jones Day will consider the situation and decide if this is ripe, or if maintaining this motion could cause damage. Rossi is only buying a little delay here.

The Motion to strike affirmative defenses was fluff, my opinion, If I were in his shoes, and I wanted to let the Motions play out before responding partially, I'd ask for leave to do so. Good chance the Judge would allow it. The Motion to Dismiss the Counterclaims, as to the major claim of fraud, is very unlikely to succeed. (that fluff about taxes can go and nobody will miss it. But it might be kept. The claim is that Rossi violated the Agreement and apparently he did. So then what were damages suffered? Rossi focuses on one kind of damage only, as if that being unlikely were enough.

Consider the effect on Planet Rossi if the Motion is not allowed for the technical reason. They may jump and shout about how stupid Jones Day is. However, the claim in the Motion will then come back. When the issue of failure to set up a Guaranteed Performance Test as required (by written agreement of the parties is the sum of it) returns in full force, with no longer any pretense that somehow estoppel can be shown, Rossi v. Darden falls on its face.

If there are documents showing that the GPT was actually approved, then the whole matter takes on a radically different color. What would be mysterious, then, would be why Rossi did not show such a document from the beginning. All indications are at this time are that the agreement never happened at all, much less in writing, as explicitly required, and required for very, very sound reasons, anyone would understand. "Six Cylinder Unit" is only one obvious aspect of that failure to come to agreement first.

Quote from Abd Ul-Rahman Lomax

Case documents are in the newvortex filespace, available to newvortex subscribers, requiring a yahoo account and then a subscription is quick.

Reading authorities cited by Rossi:

Doe v. United States, 419 F.3d 1058, 1061 (9th Cir.2005) https://casetext.com/case/doe-v-us-13

Perez v. Wells Fargo N.A., 744 F.3d 1329, 1336 (11th Cir. 2014); see also 1337 https://casetext.com/case/perez-v-wells-fargo-bank-na and http://georgialawreview.org/el…s-in-perez-v-wells-fargo/ -- a law review article -- is of high interest.

5 Wright & Miller, section 1184 at 24 n. 1 (reference text compiling case law)

Arnold v. New Jersey, CIV.03-3997 WHW, 2007 WL 1381757 at *2 (D.N.J. May 9, 2007 https://casetext.com/case/arnold-v-state-3

Press Rentals Inc. v. Genesis Fluid Sols. Ltd., 5:11-CV-02579 EJD, 2012 WL 3791449, at *7-8 (N.D. Cal. Aug. 31, 2012) https://casetext.com/case/pres…genesis-fluid-solutions-3

Federal Rule of Civil Procedure 7(a) defines "pleadings." https://www.law.cornell.edu/rules/frcp/rule_7

Authorities cited by Darden in the Motion for Judgement on the Pleadings:

Perez (2014) as above.

Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002) https://casetext.com/case/horsley-v-feldt

Geter v. Galardi South Enters., Inc., 43 F. Supp. 3d 1322, 1328 (S.D. Fla. 2014). http://www.leagle.com/decision/In Adv FDCO 150615-000085/GETER v. GALARDI SOUTH ENTERPRISES, INC.

Esys Latin America, Inc., 925 F. Supp. 2d at 1314. [not found]

Marshall Const., Ltd. v. Coastal Sheet Metal & Roofing, Inc., 569 So.2d 845, 848 (Fla. Dist. Ct. App. 1990). http://www.leagle.com/decision…569So2d845_11310/MARSHALL CONST., LTD. v. COASTAL SHEET METAL & ROOFING, INC.

Reilly v. Reilly, 94 So.3d 693, 697 (Fla. Dist. Ct. App. 2012) https://casetext.com/case/reilly-v-reilly-42

Mr. Lomax,
Thank you for your posting of contextual links and opinions on this case. I have found them to be well thought out and logical. While I have no qualifications of significance in law, I have found this case to be very interesting. Your posts give much to think about and the included information is much appreciated! I do not begrudge the length of some posts.... complicated matters often cannot be summed up by few words. There are those that want "simple answers" and there may not be any in this case.

I realize that there is still much unknown (relating to both IH and Rossi) but as more is revealed, the picture becomes a little clearer. The painting is still much more "a Monet" than "a Courbet" at this time, but it is becoming clearer. I just hope it does not turn out to be "a Picasso"! :crazy: But as the saying goes "truth is stranger than fiction".

I do not begrudge those who support and believe in Rossi. The complete story is not yet known and the eCat is of a Schrödinger's variety. We will not know if it is alive or dead until the box has been opened. That box is most likely the outcome of the IH counter suit or as some state, it will be the commercialization /sales of the plants. The counter suit outcome, if it is pursued by IH, will be known. The commercialization may simply go on for many years. BLP has been in "business" for 20 years now and nothing is really more known than before. Will the eCat be the same?

I truly hope this lawsuit will open the box once and for all. I have my opinion, that the cat is dead, but it could still be alive or... even more weird, it could be both... dead and alive at the same time!

In any case, I wanted to thank you and others for posts on this subject. It is fascinating and yet somewhat sad.... it does not have to be such a mystery.

Quote from Paradigmnoia

Acrobat OCR usually does a good job at fixing this, if the document quality isn't too ugly.

Some of the case documents have been through that, obviously. (They are apparently text over image, so the image is correct, sometimes, and the recognition is incorrect, so when quoting, I need to proofread.) This document is quite clean, it's a good scan, apparently.

I don't have Acrobat OCR. So I looked and found freeOCR. I do not know why, something is strange, but it would not convert the PDF. If anyone has a converted version, I would appreciate it. It can be emailed to abd, at the domain lomaxdesign (dot) com. Done, thanks to the user who did not want credit.

Quote from Paradigmnoia

Mary mentioned PESN on a different thread (where this is even more off topic) which reminded me of something Sterling wrote a long time ago. Rossi's mysterious factory-lab in Miami has never been found.

http://pesn.com/2012/03/11/960…ry_No_Nuclear_Reactions//

Fascinating to read that Sterling Allan quote from 2012.